This dispute relates to the ownership of the mark in suit. Mr Harrison states that his involvement with the FLUOVAC apparatus commenced in 1979. Following retirement from ICI in 1980 he developed and tested the equipment with ICI’s blessing but not their involvement. The first customer for the new equipment was ICI and the goods were sold under the mark FLUOSORBER.

By 1982 Mr Harrison’s firm was working with the firm IMS (the applicant’s predecessors in business which was acquired in 2001). At that time IMS was a marketing firm in which Mr Harrison’s wife (or ex-wife as they are now divorced) was a joint director. The mark FLUOVAC was adopted and it would appear that most sales took place through IMS, Mr Harrison’s company being the manufacturer.

The applicant states that when his company acquired the IMS business in 2001 it was on the understanding that it was acquiring the business and goodwill in the FLUOVAC mark but that understanding is challenged by Mr Harrison. Despite attempts to obtain information from the ex Mrs Harrison (now Ms Davenport) she has not provided any evidence in these proceedings.

Under Section 5(4)(a) – Passing Off – the Hearing Officer carefully examined all the evidence filed and the claims and counterclaims made by both parties. However, this evidence does not establish who coined the name FLUOVAC nor does it clearly establish that Harrison’s company manufactured solely for IMS. IMS sold and promoted the goods and there is no indication that it referred to Harrison’s company as the manufacturer. In the absence of information from Ms Davenport the Hearing Officer did not believe that either side had adequately proved their case. As there was an onus on the opponent to show that he had a goodwill and reputation in the mark FLUOVAC at the relevant date, and he had failed to do so, there could be no misrepresentation or damage. Opposition on this ground failed.

As regards the ground under Section 3(6) it was a fact that the applicant was under the impression that he had obtained the rights and goodwill when it purchased the business of IMS. In these proceedings the opponent has been unable to prove otherwise. The ground under Section 3(6) must also fail.